May 26, 2004

Today, the Ninth Circuit issued an opinion in Oregon v. Ashcroft rejecting the "Ashcroft Directive," the Attorney General's position that a doctor using a controlled substance to assist a suicide violates the federal Controlled Substances Act and faces criminal prosecution and the loss of prescription privileges. The court tapped federalism values as it made room for Oregon's experiment under its Death With Dignity Act.

In Washington v. Glucksberg, a 1997 Supreme Court case cited in today's opinion, Justice O'Connor wrote a concurring opinion, agreeing that there is no federal due process right to physician-assisted suicide and arguing for the narrow interpretation of constitutional rights because the states were actively serving as "laboratories," working through the complexities in this complicated area of policy. The laboratory that is Oregon subsequently produced the Death With Dignity Act, and the Ninth Circuit cited O'Connor's Glucksberg opinion as it showed great respect to Oregon's policy work today.

The court also cited another Ninth Circuit case about doctors, federalism and the Controlled Substances Act: Conant v. Walters (2002), which protected doctors who recommend marijuana for medicinal purposes under California's Compassionate Use Act. In Conant, the court saw the states as having the central role of supervising doctors and looked askance at the federal government's attempt to use the CSA to horn in on the state's area of responsibility. The Ashcroft Directive at issue in today's case also involved the federal government's use of the CSA to prevent doctors from carrying out the state's ideas about good medical practices. Conant involved the recognition of the doctors' First Amendment right to communicate with their patients, though Judge Kozinski's concurring opinion relied much more on federalism values. The case today saw a special role for the states with respect to doctors, and based on that traditional role, it chose a narrow interpretation of the CSA to leave that traditional role untouched.

In opting for narrow statutory interpretation to serve the interests of federalism, the Ninth Circuit cited the 1991 U.S. Supreme Court case, Gregory v. Ashcroft. Gregory stands for the proposition that federal statutes will not be read to change the traditional federal-state balance unless they make a clear statement of their intent to do so. (John Ashcroft was a party to that case as a state governor, successfully avoiding the application of the federal law against age discrimination to state judges.) Today's decision uses the Gregory presumption in favor of the traditional federalism balance and finds enough unclarity in the Controlled Substances Act to justify reading the CSA not to permit the Justice Department to punish doctors who are engaged in the practice of medicine within the standards set by state law.

One judge (on the three-judge panel) dissents. Judge Wallace relies heavily on the principle that courts should defer to the Attorney General's interpretation of the act he has the duty to enforce. Let Congress change the statute if he's wrong, or let the people elect a different President and bring in a new Attorney General. (Note that Clinton's AG, Janet Reno, took the position that the CSA did not reach the Oregon doctors). The majority rejected that sort of deference though, again, on federalism grounds. It cited the 2001 U.S. Supreme Court case Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, which rejected the Army Corps of Engineers' interpretation of the Clean Water Act to apply to nonnavigable streams. In the Solid Waste case, though, the Supreme Court wrote, "Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result." The problem there was that Congress may have reached the end of its Commerce Clause power if it meant to reach isolated wetlands. But there is no question that Congress could reach doctors in the practice of medicine under the Commerce Power. The Solid Waste Court premised this departure from the usual deference on a "prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority." That is not true in the Oregon case.

The Solid Waste court did also say that its concern about a statute reaching the edge of congressional power was "heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power." And that is the issue the Ninth Circuit is relying on. So a key question that should face the U.S. Supreme Court very soon is whether to accept this idea that medical practice is a special area of state power to be protected from federal intrusions. The Ninth Circuit has taken the federalism cases of the the conservative Supreme Court and applied them to protect the autonomy of states like California and Oregon that are engaged in the sort of policymaking that tends to bug the hell out of conservatives.

Unlike individual constitutional rights, which can be found to extend to some substantive areas but not others, constitutional federalism protects state autonomy, and the state may do all sorts of different things with that autonomy. If you think you like (or don't like) federalism, you may want to rethink it if a state starts to do something you don't like (or do like). To want to do things with federalism, judges have to want to take the good policies and the bad, to trust local decisionmaking--unless they are reckless enough about their appearance of neutrality to turn their support for federalism values on and off, depending on whether they approve of what a particular state has done.

(Remember, I'm a law professor, not your lawyer.) Under the Supreme Court's case law, it is very clear that the Commerce Power reaches this, because doctors are engaged in a commercial enterprise that has a substantial effect on interstate commerce. Even though the Court has placed some federalism-based limitation on the Commerce Power in recent years, there is nothing in the newer cases that would work to exclude Congress from regulating doctors under the Commerce Power. You may be thinking more in terms of affirmative limitations using individual rights, but the Court in Gluckberg declined to develop a right in this area. There is some room for a First Amendment right of the type discussed in Conant, which is only about a doctor communicating with the patient. But the Oregon case is not about mere communication: it's about actually prescribing the drug. In that case, the circuit did not find a constitutional right keeping Congress from regulating the doctors, it just interpreted the statute to say this action of the doctors wasn't covered by the statute, allowing ideas about federalism to influence the way it did statutory interpretation.

This might be a case of the law catching up with science. Proponents of medical marijuana are on the "winning" side of the issue. Revoking doctors' licenses over prescriptions, or recommendations of marijuana's benefits to patients is a bad move politically. Courts are coming to realize that.